Can you move for a new trial when your case was disposed of by
summary judgment? This question undoubtedly causes some degree of
cognitive dissonance in many lawyers: a new trial when there was no trial?

Tulane Prof. Steven Childress has a forthcoming article in the Review of Litigation titled Revolving Trapdoors: Preserving Sufficiency Review of the Civil Jury after Unitherm and Amended Rule 50. Click here to download the latest draft from SSRN or read on for the abstract:

The article considers recent case law
and an amendment to Rule 50 of the Federal Rules of Civil Procedure.
Both change the possibilities and effect, on appeal in federal courts,
of procedural lapses and waivers by litigants who wish to seek review
of the sufficiency of the evidence to support a jury verdict, as by
appeal of a decision on a motion for judgment as a matter of law. Both
the timing and completeness of such motions and preservation of
sufficiency error are discussed.

The
U.S. Supreme Court in Unitherm enforced a very strict waiver review
that found that such error, and even review for new trial, was fully
waived and thus not preserved for any appellate review under the
circumstances of the case. The newer Rule 50, on the other hand, more
generously expands the timing for adequately making such a motion or
raising and preserving the sufficiency issue. Together, these changes
solve some common trapdoors for litigants and judges, but create new
ones or maintain old ones that should still be considered at trial of
civil cases in federal court.

Click here to read "Federal Question Jurisdiction and the Federal Arbitration Act," posted on SSRN by Northern Kentucky Profs. Richard Bales and Jamie Ireland. The article is forthcoming in the Colorado Law Review, and the abstract follows. --RR

The Federal Arbitration Act
gives signatories to an arbitration agreement the right to have that
agreement specifically enforced. The FAA does not, however, confer
federal subject matter jurisdiction. Absent federal jurisdiction, a
party seeking enforcement under the FAA must sue in state court. State
courts, however, are far more likely than federal courts to use state
contract law doctrines to avoid enforcing arbitration agreements. This
has led parties seeking enforcement to look for other ways into federal
court.

Some
federal courts have found jurisdiction over enforcement actions when
the underlying dispute involves a federal question, such as when an
employer is seeking to enforce an arbitration agreement against an
employee who has sued for employment discrimination under Title VII.
These courts reason that the text and history of the FAA require courts
to "look through" the dispute about enforceability to the underlying
dispute. Other courts, however, have concluded that such a "look
through" is inconsistent with the text and history of the FAA and with
the well-pleaded complaint rule.

Our article explains that the
difficulty of choosing one approach over the other is exacerbated
because the same interpretive tools can be marshaled in favor of each
approach, and because the arguments made using each interpretive tool
are not mutually exclusive. Our article argues that courts should adopt
the "look through" approach.